October 2009

Whether you got hurt at a processing plant or developed carpal tunnel syndrome while working as an executive for one of the big banks of the Research Triangle, you may need significant North Carolina workers’ compensation benefits to pay for medical care and support your budget while you recuperate. Unfortunately, a fair number of claims get denied every year because applicants don’t take the time to learn about best practices for filing. Here are some common mistakes that claimants make – along with suggestions for how to avoid these problems:

1. Waiting too long between the time of the injury/ incident and the time that you file a claim – Wait two or three months between getting hurt at work and reporting the accident, and not only might your employer be less sympathetic, but you also may lose some legal leverage. The longer you wait before investigating North Carolina workers’ comp, the harder it will be to collect evidence and statements to support your claim.

2. Saying the wrong things to your employer / and or insurance company representative –Candor is generally a sound ethical strategy. But you might be advised not to discuss your case at all with insurance company representatives, for instance, before speaking with an experience North Carolina workers’ compensation attorney. After all, your employer and your employer’s proxies may not have your financial interests in mind. And making even “innocent” statements can jeopardize your claim.

3. Changing your story – when you do give a statement to an employer or an insurance company representative, if you later revise the facts of the incident, your claim may come under significant suspicion, particularly if it’s a large claim or a claim for benefits that might last years or even decades.

4. Failure to keep a paper trail and to track witness statements – just because you ‘know’ you should be entitled to workers’ compensation benefits doesn’t mean that your employer, an insurance company, or even an objective judge will agree. Fortify your contentions by collecting statements from employees who saw you get hurt, by keeping track of any paperwork your doctor or employer provides, and so forth. Do this spade work, and your North Carolina workers’ compensation attorney should be able to dispatch your case more quickly, efficiently, and effectively.

Examples of injuries that could lead to a North Carolina workers’ compensation claim might include: • A construction worker gets hit by a falling beam while inspecting a site. • A pizza delivery worker breaks her collarbone in an auto accident on the way to a customer’s house. • A postal service worker slips and falls on icy steps and shatters his coccyx. • A dog catcher gets a finger bitten off by an angry pug.

• A secretary gets carpal tunnel syndrome after typing dictation rapidly for her boss. • A hairstylist hurts his hands after scissoring 12 hours a day for three years. • A pianist adopts a lazy technique and as a result gets thoracic outlet syndrome (TOS).

3) Occupationally specific injuries

Certain occupations expose workers to very specific types of hazards. For instance:

• A painter gets sick after inhaling aromatic compounds, like benzene. • A landscape artist gets electrocuted after attempting to move a live power line with faulty equipment. • A farmer gets flu from one of his chickens.

4) Psychologically-induced injuries

Stresses at work – including verbal abuse, loud noises, and harassment – can cause physiological problems. For instance:

• An airline worker who works on the tarmac develops post traumatic stress syndrome from hearing jet engines launch all day. • An assistant at a fashion company develops depression and stomach problems after getting yelled at repeatedly by her bosses. • A medical resident suffers sleep deprivation and high cortisol levels.

On June 9th, 2009, an explosion at a Slim Jim plant in Garner, North Carolina killed three and injured dozens. A spate of North Carolina workers’ compensation claims were filed in the wake of the disaster, which authorities at the U.S Bureau of Alcohol, Tobacco, Firearms and Explosives now believe was caused by a defect in the natural gas piping system.

The Garner plant rebooted its operations shortly after investigators completed their work there and safety inspections had been performed. That said, the plant was hobbled and could only produce at half its former capacity. Since the Garner plant was the sole manufacturer of Slim Jim products in the U.S., the incident impacted the entire country’s dried meat industry.

The burden of paying 750 full time employees as well as North Carolina workers’ compensation benefits for the injured led management to take defensive action. On Friday September 18th, ConAgra announced that the company will slash 321 jobs at the plant. Layoffs will begin in November and will be based on seniority and experience with the company, according to reports. Workers currently receiving benefits will be forced to look to the state to provide their North Carolina workers’ compensation payments.

In addition to these cost saving measures, ConAgra has committed other resources to shoring up the plant, such as outsourcing some of its manufacturing to third parties and paying factory workers per hour worked (as opposed to per a standard forty hour workweek).

The Hartford Courant reports that a man named Steven Zaczynski has been charged with fraud and other counts in conjunction with a complex workers’ compensation scheme in CT. Although North Carolina workers’ compensation experts have yet to weigh in on the matter, the attention grabbing nature of this case may impact how authorities investigate and deal with similar North Carolina workers’ compensation fraud matters.

According to The Courant, Zaczynski had been working for the Department of Corrections at the Carl Robinson Correctional Institution, when he filed for workers’ comp benefits, citing an on-the-job injury. But according to an investigation ordered by Attorney General Richard Blumenthal, Zaczynski just took the money and continued to work full time for his own business, New England Pallet of Enfield. (Zaczynski allegedly stole $12,656 in benefits.)

But the case gets weirder and more complicated. Apparently, Zaczynski also fleeced customers of New England Pallet — he took money for pre-orders but never delivered products — AND he failed to provide workers’ comp coverage for his employees.

Given the nuances and layers of this case, it may be a while (if ever) before a similar North Carolina workers’ compensation case goes to trial. But the situation illustrates how fraud, insurance scams, larceny, and other labor rights violations can coincide. This is important because injury claimants who have been unfairly denied workers’ comp by their employers or insurance companies need to be aware — not just of their own situations — but also of the extended situations that may be preoccupying their employers/insurers.

Most North Carolina workers’ compensation stories begin with prosaic events, such as slip and falls or back injuries. But the case of HoneyBaked Ham Manager Richard Huether began literally at gunpoint.

Back in April, a burglar attempted to rob Huether’s HoneyBaked Ham store. In the ensuing confrontation, Huether ended up shot. Subsequently, the company (which is based in Georgia) reportedly went out of its way to provide North Carolina workers’ compensation, reimbursement for costs of COBRA payments, and extra pay to make up the difference between Huether’s benefits and his normal wages. However, Huether has now reportedly been terminated from his job — just after his workers’ comp benefits ran out.

In a public statement, the company maintained that Huether was let go in order to allow him to collect social security benefits. But the injured worker was not pleased by the decision. In particular, he publicly expressed concerned that he will lose his health insurance as a result of the termination. (Given Huether’s pre-existing injuries, new insurance could cost his family as much as $5,000 a month, according to sources close to the family.)

Although social security benefits may cover therapies, treatments, and other medical costs, the process of accessing social security moneys can drag on for a long time — even for years — and thus create financial stresses in the short term.

HoneyBaked Ham is a popular franchise in the south. But the company is no stranger to controversy. A vegan protest of a HoneyBaked Ham store once resulted in the mass arrest of activists and major media coverage.

State law construes eligibility broadly. The law gives claimants significant leeway to make claims for benefits to cover lost wages and medical bills. As long as you suffered an injury on the job and as long as your sickness or injury was not caused by gross misconduct on your part, chances are you will qualify. (Of course, you must have sustained your injury/illness while working for your present employer to collect benefits from that company or from its insurers.)

If you got injured on the way to work or while travelling on a work function, will you qualify?

In most cases. As long as you were engaged in a work related activity, you should be eligible for North Carolina workers’ compensation benefits. Moreover, if your employer (through intentional misconduct or gross negligence) caused or aggravated your injury or illness, you may be entitled to extra benefits, such as double payments.

What kind of injury might constitute an actionable damage?

In general, the injury or illness must be significant. For instance, bruises, contusions, fractures, repetitive stress injuries, mental/emotional trauma, and back problems such as sciatica can all be grounds.

Will your eligibility last indefinitely?

No. You must file a claim within a designated time limit or your claim may be denied, or your benefits may be slashed or reduced. Moreover, just because you qualify for benefits now doesn’t mean that the employer or insurer will cooperate for the life of the claim. And, of course, each North Carolina workers’ compensation case is different and thus requires nuanced handling.

Given all these factors, it generally makes sense for claimants (or even potential claimants) to discuss their issues with a qualified North Carolina workers’ compensation attorney.

Since the early 1900s, North Carolina workers’ compensation benefits have provided injured workers with money for missed wages, medical bills and retraining. Unfortunately, abuses of the workers’ comp system have reached epidemic proportions, according to the National Insurance Crime Bureau, which surveyed the industry and found that this crime costs America around five billion dollars a year.

Workers who feign injury to collect benefits pass the costs of these payouts onto insurance companies, employers, and the federal government, resulting in higher premiums for everyone and stealing focus from legitimate workers’ comp claims. Insurance company advocacy groups and federal and state regulators claim that perpetrators of North Carolina workers’ compensation fraud do systemic harm, in other words.

No doubt many people do take advantage of the system by intentionally misreporting or mischaracterizing aspects of their conditions, and so forth. At the same time, however, the insurance companies cannot fairly claim to be pure victims of this fraud. Companies are generally free to hike up rates. And by investigating — and in some cases harassing — legitimate North Carolina workers’ compensation policy claimants, insurers often exacerbate the stresses on these individuals, thus indirectly causing more health problems for them and thus straining healthcare resources further and hurting the economy.

It’s also debatable whether at least some of the fraud that’s been going on constitutes a “gray market” as opposed to a “black market.” Consider: many injured workers don’t get a fair shake when it comes to their benefits. Some then rebel against a system that they perceive to be (and objectively may be) biased against them by committing fraud. Thus some attempts to siphon money from insurance companies could theoretically be justified. (That said, the law is the law.)

The deeper issue that needs to be addressed may be more global in nature. In other words, perhaps neither the perpetrators of fraud, nor the insurance companies are at the root of this epidemic. Maybe the problem is that American workers do not get adequate safety training. Alternately, maybe some massive as-of-yet-fully-acknowledged problem (such as poor workstation ergonomics) is injuring a vast number of workers and thus draining the resources of insurance companies (who in turn must bully policyholders to survive financially; and in turn policyholders must perpetrate small scale fraud to be able to pay their bills.)

In the early 1900s, concurrent with the advent of new regulations to protect North Carolina workers (and workers across the Union), other cultural paradigms began to shift. Women’s rights advocates and minority rights advocates, in particular, focused the nation’s attention on the plights of the downtrodden, disenfranchised, and discriminated against.

North Carolina workers’ compensation law owes a significant debt to mid-19th century German and English law. Otto Von Bismarck, one of 19th century Germany’s most colorful leaders, introduced what became known as a Compulsory Plan in 1881. This law followed on the heels of a similar law called the Voluntary Insurance Act of 1876. The provisions of these laws would no doubt sound dated and unfair to us, in that they allowed employers a tremendous amount of leeway. (And indeed, despite these early efforts, employers perpetrated countless egregious violations against laborers during the 19th century and early 20th century. Clogged courts and biased or bribed judges prevented justice from being served in the vast majority of these cases.)

Nevertheless, thanks to the hard work of leaders like Bismarck, Roosevelt, and the leaders of women’s suffrage and minority rights movements, workers’ compensation law bloomed and expanded in its province in the 20th century. In the mid to late 1900s, other state and federal laws were passed to empower injured workers in a variety of trades. Finally, in the 1960s, the U.S. Congress — motivated in large part by the draconian tactics of President Johnson — passed a slew of laws that gave umbrella protection to women, minorities, and workers. These laws shifted the paradigm. Henceforth, North Carolina workers’ compensation debates would revolve around interpreting these much higher standards. Indeed, Johnson’s 1960s-era legislation to this day serves as the foundation for thinking about how to protect workers and ensure fairness to their employers.

How will our labor laws evolve? Obviously, it’s practically impossible to predict the twists and turns of cultural norms. Typically, paradigm shifts happen in spurts. As we have seen, the 1960s were a particularly fecund time for the development of new attitudes about workers’ compensation. So, when change comes, expect it to be fast and furious. Demographic shifts in North Carolina should also play a significant role in determining the shape of future laws. As North Carolina’s economy has evolved — witness the recent explosion of economic activity in the Research Triangle, for instance — so have the state’s attitudes and even its deep-set philosophies. Indeed, the one thing any prognosticator can say for certain is that today’s laws will no doubt look strange and perhaps even absurdly unjust to future generations.